Articles Posted in Car Accidents

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

It is true, of course, that every case is different, and that the value of an award in one case cannot be determined to be unreasonable on the basis of awards in other cases. However, the Supreme Court encourages trial courts, when reaching a determination concerning the reasonableness of the amount awarded by the jury, to consider damage awards in other cases. In discussing appellate review of a denial of motion for new trial based on excessive damages, the Supreme Court remarked in Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d 498, that, [w]hile the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. (Id. at p. 508.)

More recently, in Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, the court cited to the language in Seffert quoted above, and, based on it, conclude[d] that while it is appropriate to look at awards in similar cases, ultimately we must determine the propriety of the award based upon the facts of this case. (Id. at p. 550.) The court also found that a comparison of other cases may give us a point of reference . (Id. at p. 552.)

While it is true that the physical injuries and pain and suffering are different in all cases, they also share similarities. If they did not, then jurors would have no means by which to determine, in the first place, a reasonable amount of damages on the basis of their own experience as human beings.

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

The Jury’s $5.4 Million Non-Economic Damages Award to Mr. Ward Is Excessive
The jury awarded $5,400,000 past and future non-economic damages to Mr. Ward. This amount suggests a “per year” approach by the jury, in that this amount is precisely equal to $150,000 per year, multiplied by a life expectancy from the time of the auto accident of 36 years.

In general, a jury violates the law when it uses a mathematical formula to arrive at a figure for damages. (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 755-756, citing to Beagle v. Vasold, supra, 65 Cal.2d at p. 172.) The taking of a per-year or per-diem approach (i.e. where a dollar value is equated with pain and suffering over a unit of time) is an exception to this rule. (Beagle at pp. 179-180.) However, the use of this method can still lead to unreasonable results because, like any formula, it removes the determination of damages for pain and suffering from the realm of human experience. In his dissenting opinion in Beagle v. Vasold, supra, 65 Cal.2d 166, Justice Traynor strongly disapproved the use of per diem formulas, correctly observing that [n]one of these formulas appears unreasonable on its face, for there is no basis in human experience for testing their reasonableness. (Id. at pp. 183-184.) He concluded that [i]t is therefore unrealistic to seek an appropriate award for pain and suffering by the use of any so-called per diem formula. (Id.)

The Beagle majority addressed this concern by stating that, [W]hatever manner of calculation is proposed by counsel or employed by the jury, the verdict must meet the test of reasonableness. The per diem argument is only a suggestion as to one method of reaching the goal of reasonableness, not a substitute for it. If the jury’s award does not meet this test, the trial court has the duty to reduce it…. (Beagle, supra, at pp. 179-180.)

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

The remaining amount of nearly $2,000,000 in the “life care plan” includes $837,000 for interventional pain therapies that Mr. Ward’s own experts admit he may or may not need; $413,400 in household help and attendant care that he may or may not need; and $350,000 for lumbar and cervical spine surgeries based on the estimate of Dr. Sam Stein. The lesser amounts are for items which are even more speculative: $113,838 for supposedly anticipated medical evaluations and treatment in every conceivable field of medicine (including psychiatry, psychology, podiatry, dentistry, gastroenterology, urology, neurology, and internal medicine) which his experts and attorneys are once again being disingenuous in suggesting are tied to actual anticipated expenses; “other therapeutic interventions” in the projected amount of $90,855; additional diagnostic studies totaling $51,743; and a projected cost of $34,625 for emergency room visits.

These costs simply bear no rational relation to any expected, concrete future expense. And those few that do bear at least some rational relation (e.g., the surgeries by Dr. Stein and the interventional pain therapies consisting of the opium pump) are wildly inflated and unsupported as to their amounts.

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

The Jury’s $3,185,711 Economic Damages Award to Mr. Ward Is Excessive

The jury awarded Mr. Ward economic damages consisting of future medical expenses in the amount of $3,185,711. This was based on the testimony of Dr. Frank Shin, the substance of which is reflected in Dr. Shin’s “Life Care Plan,” which states a purported total cost figure of $4,685,561. That means the jury awarded roughly 68% of the amount asked for by the plaintiffs.

Dr. Shin’s “Life Care Plan” purports to state the precise cost of surgical procedures, individual medications, and medical treatments of every imaginable variety. (Dr. Shin’s testimony was the only evidence presented at trial in support of the amounts stated on this document.
The life care plan states an estimated lifetime cost for medications totaling the unbelievable sum of $2,708,200. This sum was reached by multiplying Mr. Ward’s supposed remaining life expectancy of 35 years (i.e. 420 months) by the monthly cost of a total of ten different medications, plus an additional $250,000 for botox injections. (This amount in particular is clearly overstated, since the total cost is listed as $5,000 per year, which, multiplied by a 35-year life expectancy comes only to $175,000, not $250,000.)

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

This Court Is the Only Forum in which Defendants Can Realistically Seek a New Trial Based on Excessive Damages Awarded by the Jury

As discussed above, while this Court is able to re-weigh evidence and determine whether damages are excessive based on a standard of reasonableness, the court of appeal is governed by a far different standard. That means if this Court denied this motion, the court of appeal could find the jury’s award excessive only if it found the amount of the award was so high as to clearly have been the result of passion or prejudice on the part of the jury. (Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at p. 507.)

The inability of the court of appeal to re-weigh evidence gives rise to differing standards of review between it and this Court. As Witkin explains, The appellate court does not weigh the evidence on damages, and will reverse a judgment on appeal only if no substantial evidence supports the award. But the trial judge is not bound by the rule of conflicting evidence and may grant a new trial if the award is against the weight of the credible evidence. (8 Witkin Cal. Procedure 4th (2002) sec. 37, p.542.) Necessarily, the court of appeal accords a great deal of weight to the finding of the trial court, when, after a re-weighing of the evidence, the trial court has concluded that the jury’s verdict is reasonable. (See Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614-615.)

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

This legislative note alludes to the fact that, while the statute had on its face previously required a finding of “passion or prejudice,” this requirement was contrary to valid Supreme Court case authorities, which had embraced the reasonableness standard based on a re-weighing of the evidence. Even though this Court need not find passion or prejudice influenced it, the award of damages here surely can be viewed that way. Given the parade of experts and the inflated numbers submitted to the jury, the outrageous amount here could be set aside for that reason, if it were necessary. (See Beagle v. Vasold (1966) 65 Cal.2d 166, 179-180 [ [W]hatever manner of calculation is proposed by counsel or employed by the jury, the verdict must meet the test of reasonableness….

If the jury’s award does not meet this test, the trial court has the duty to reduce it ]; Sinz v. Owens (1949) 33 Cal.2d 749, 760 [the Court refers to a line of cases which “realistically conclude that an order for a new trial on the basis of excessive damages” necessarily is granted on the ground of the insufficiency of the evidence to sustain a verdict for the amount awarded by the jury]; Van Ostrum v. State (1957) 148 Cal.App.2d 1, 7 [court holds that, [t]he trial judge had the duty as well as the power to set aside the verdict when he found, pursuant to his own independent appraisal of the evidence, that it did not support an award of $4,000; it was not necessary for him to find passion or prejudice on the part of the jurors ].)

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

Initially, it is important to note that the statute establishes exactly what the court must find in order to determine that an award of damages is excessive. It must find, based on the evidence presented at trial, that the jury’s verdict–the amount of damages–was unreasonable and therefore should have been different. Unlike a court of appeal sitting in review of an order denying a motion for new trial, the trial court need not find that the award is so large that it must necessarily have resulted from “passion or prejudice” on the part of the jury. The Supreme Court explained the reason for this distinction in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498:

The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented it becomes his duty to reduce them. When the question is raised his denial of a motion for new trial is an indication that he approves the amount of the award. An appellate court has no such powers. It cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors. (Id. at p. 507, quoting Holmes v. Southern California Edison Co. (1947) 78 Cal.App.2d 43, 51.)

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

BRIEF STATEMENT OF FACTS

In this action, Mr. and Ms. Ward sought to recover for injuries he sustained in an automobile accident that occurred on October 15, 2004; liability was admitted. Following the completion of jury selection, the trial of this action commenced on June 7, 2007 and finished on June 26, 2007. The jury reached its verdict the following day, after about four hours of deliberation. It awarded a total of $10,105,711 consisting of: $3,185,711 to Mr. Ward in future medical expenses, $5,200,000 to Mr. Ward in past and future non-economic damages, and $1,620,000 to Ms. Ward for loss of consortium.

LEGAL DISCUSSION

Each of the jury’s three basic awards of damages is unreasonably excessive and unsupported by the evidence presented at trial. The awards must be reduced by this Court under Code of Civil Procedure section 662.5(b). In the event that plaintiffs are unwilling to accept remittitur, this Court should order a new trial.

This Court Can and Must Order a New Trial Where the Damages Awarded by the Jury Are Clearly Excessive Based on a Reasonableness Standard

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

DEFENDANTS’ MOTION FOR NEW TRIAL
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

The trial court is the sole line of defense against excessive jury verdicts. This Court is thus empowered to re-weigh the evidence, and to determine independently whether the evidence justifies the amount awarded by the jury. That power should be exercised here, if ever there were a time to do so.

Here, the jury awarded the astonishing amount of $10.2 million against Zenkov for injuries suffered by Mr. Ward, and the loss of consortium suffered by Ms. Ward. Yet there was no catastrophic injury here of the type justifying $10.2 million. This amount is not an amount which a reasonable person would estimate as fair compensation for plaintiff’s serious–but not catastrophic– injuries. These awards are utterly unreasonable, and this Court must act. For if it does not, then Zenkov will have no practical other legal avenue by which to seek a reduction of the monstrous amount which has been awarded against him.

Mr. Ward did, of course, present evidence at trial that he has suffered serious–but not catastrophic–injuries due to the auto collision. The evidence is of injuries to his neck, back, and knee, which cause him to suffer chronic pain for which he must take powerful drugs, and which will require surgery in the future. These injuries, while substantial, simply do not justify an award of $10.2 million. This is so because, while the evidence may have shown that Mr. Ward’s injuries have affected his quality of life, the same evidence also showed conclusively that his injuries have come nowhere close to destroying his life.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Contrary to Defendant’s argument that it is necessary for a meeting between co-conspirators for form a conspiracy, The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and circumstantial evidence. It is not necessary to show a meeting of the alleged conspirators or the making of an express or formal agreement. (BAJI California Jury Instructions, Civil 9th Ed., 2002, P. 205) (Emphasis added) Kidron v. Movie Acquisition Corp. 40 Cal.App.4th 1571, 1583 (1995)

It is clear from the events that occurred the night of December 19 and early morning of December 20, 2006, that Stacy Greene and El Mexicano knowingly conspired to violate Business & Professions Code Sec. 25602.1, planning their wrongful acts, assisting each other, knowing their acts were wrongful and unlawful. El Mexicano andStacy knowingly conspired to violate Business & Professions Code Sec. 25602.1. Plaintiff’s TAC has alleged numerous facts to establish thatStacy knowingly co-conspired with El Mexicano Restaurant to “sell, furnish, give or cause to be sold, furnished or given away any alcoholic beverage” to an “obviously intoxicated minor,” Matt Smith, in violation of Business & Professions Code Sec. 25602.1. There must be a showing of knowledge of the planned tort and intent to aid in its commission. Wyatt v. Union Mortgage Co. 24 C.3d 773,784 (1979)
Stacy brought the minors to El Mexicano so that they could be entertained on the night and early morning of December 19, 20, 2006.

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